Last week, U.S. Attorney General John Ashcroft momentarily turned his attention away from the search for terrorists, looked westward and quashed another threat to domestic tranquility: the Oregon voter.
It wasn't the first time Washington, D.C., has told this state where to get off: Since 1981, the feds have required Oregon to get special permission to spend Medicaid money on old people living outside nursing homes; the Oregon Health Plan continues to draw resistance from federal regulators. But this particular episode, the threat to unleash DEA agents on doctors who help terminally ill Oregonians end their lives, seems quite different.
Ashcroft's ruling now rests in federal court, where it has been challenged by Oregon's attorney general. In the meantime, a number of questions have yet to be answered about the real story behind Ashcroft's decision. Conversations with a number of observers, a review of the historical record and a measure of common sense sketch out a tale of high-octane politics, one in which a decision by the nation's chief legal officer had less to do with the law than with the agenda of religious special-interest groups, and in which the timing of that decision neatly dovetailed with the needs of Sen. Gordon Smith, a rising star in the Republican firmament.
Of course, the battle over assisted suicide was different from the start. The 1994 ballot measure wasn't just another initiative, some tedious, Rube Goldberg piece of tax plumbing that seemed to spring more leaks than it fixed. Instead, this was about life--and death. Few could help but get caught up in the debate--which became divisive not necessarily because it had to, but because it was so novel it felt as if it ought to.
The initiative rolled across the state like a magnetic marble, attracting the metal shavings of cutting-edge politics--campaign lies, media misstatements, strange characters, bundles of out-of-state money and huge national interest. The measure passed, by a margin of 31,000 votes, but that was just the beginning.
In 1995, a Reagan-appointed federal judge ruled the measure unconstitutional; two years later that decision was overturned on appeal. Then Oregon lawmakers, acting out of both fear and arrogance, sent the measure back to voters, claiming they just wanted to make sure Oregonians knew what they were voting on.
During that second campaign, in 1997, the anti-suicide lobby spent $4 million, four times its opponents' budget. Yet voters responded with a political poke in the eye: By an extraordinary margin of 220,000 voters, Oregonians said, "Hell yes, we do want to be the first state in the nation to allow the terminally ill to end their lives." End of story. Or so most people thought.
It's now apparent that, for the past four years, some of the most influential people in Washington have been working to abolish Oregon's decision. In some cases, the efforts have been made in the open; in others, behind closed doors. But the agenda was the same: to rein in a rebellious state that had strayed too far out in front of the rest of the nation.
Not long after the 1997 vote in Oregon, the anti-suicide forces in Washington, D.C., went to work. Congress passed a law barring the use of federal funds for assisted suicide. But that wasn't enough.
A couple of conservative congressmen, Sen. Don Nickles (R-Okla.) and Rep. Henry Hyde (R-Ill.), pushed a bill to outlaw the prescription of drugs for assisted suicide. The bill passed the House in 1999, but in the Senate it ran up against Ron Wyden, the Oregon Democrat who had become unusually energized by the issue.
Personally, Wyden had opposed the 1994 measure, but he now saw his role as defending the rights of Oregonians to make their own decision on the matter. He gathered enough steam in the Senate to threaten a filibuster, even gaining the support of a few Republicans, including Pennsylvania's Arlen Specter. By 2000, it became clear that Wyden might keep the bill from ever getting to the Senate floor. That's why the incoming Bush administration, and the special-interest groups that had its ear, devised a new strategy.
Ask the average American for the names of powerful conservative religious interest groups and "Christian Coalition" or "National Right to Life" come to mind. Far less well known is the Catholic Conference, short for the United States Conference of Catholic Bishops. But, according to policy observers, this group wields the real political clout among the very conservative. Many suggest that the politics of the 378 bishops who make its decisions falls to the right of the roughly 60 million American Catholics it claims to represent. Few, however, dispute its influence.
Marjorie Signer, who works in D.C. for the Religious Coalition for Reproductive Choice, says the Catholic Conference's political pull has easily eclipsed that of the Christian Coalition. Speaking about access to the Bush administration, she says, "On a scale of one to 10 the Christian Coalition would be seven." And the Catholic Conference? "A 10."
Or, as stated this summer in a story in Conscience, a magazine published by the D.C. group Catholics for a Free Choice, "The election of George W. Bush has proved fortuitous for the nation's Catholic bishops."
The Conference engages in a variety of legislative activities. It has lobbied for federal dollars to remove asbestos from Catholic schools, for example. But its chief concerns have been issues more typically associated with conservative Christian politics. Earlier this year, for example, the Catholic Conference funded a $500,000 poster and radio campaign opposing late-term abortions.
This year, the Conference had as its top goal the banning of stem-cell research. Faced with extraordinary political pressure from both sides, the Bush administration publicly agonized over the issue, ultimately arriving at a compromise that would allow the government to fund research only on the 60 embryonic stem-cell lines already in laboratories. While many of this nation's Catholics were satisfied with the decision, the Catholic Conference was not.
It is for this reason, according to a number of sources, that Bush felt so much pressure to deliver on the Conference's second-highest priority: assisted suicide, which the bishops consider an immoral meddling with divine will.
Cathy Cleaver, a spokeswoman for the Catholic Conference, confirms the importance of defeating assisted suicide. "It is one of our most important priorities," says Cleaver, who worked on anti-abortion issues for Rep. Hyde before taking a job with the Conference. "The bishops have been working on the issue of assisted suicide for years." Indeed, the Oregon campaign against assisted suicide during the mid-'90s was run by the Conference and its local director, longtime lobbyist Robert Castagna.
When it became clear that Wyden had bottled up the Hyde-Nickles bill, thus removing the possibility of a legislative option to defeat to assisted suicide, the Catholic Conference turned its attention to an administrative solution. They could not have found a friendlier welcome than at the office of U.S. Attorney General John Ashcroft.
The former Missouri senator is widely viewed as the most conservative member of the Bush cabinet. Ashcroft, the son and grandson of Assemblies of God ministers, holds daily prayer meetings. He doesn't dance, smoke, curse, drink or gamble. The Christian Coalition gave him a 100-percent approval rating in 2000.
An opponent of assisted suicide, Ashcroft was more than prepared to use the power of his office. Besides, it allowed him to assuage the concerns of the Catholic Conference, still smarting from Bush's compromise on stem-cell research. If Congress couldn't pass a bill to prohibit assisted suicide, the attorney general would simply reinterpret the federal Controlled Substances Act in such a way that Oregon's law became illegal. In fact, Ashcroft was ready to do so as early as June 2001, when his staff prepared a memo outlining the legal argument. So why did he wait until November? A number of people insist a big reason is Gordon Smith.
Gordon Smith's opposition to assisted suicide is generally believed to be heartfelt, a function of his Mormon upbringing and his views regarding the sanctity of life. Opponents argue that Smith's position violates his campaign pledge not to let his religious views interfere with his politics. Eli Stutsman, a lawyer in Portland and a pioneer in the assisted-suicide movement, says that Smith is guilty of "selling out Oregon voters on an issue that is in its infancy. But he has elevated himself in a club that mattered to him most."
Smith, a Pendleton pea processor, rocketed through the Oregon political aristocracy in less than four years, becoming a United States senator in 1996. Hoping to continue representing Democratic-leaning Oregon for many, many years, Smith has crafted a political style that is reminiscent of another Republican, Mark Hatfield, easily the most successful federal politician from Oregon since World War II. Hatfield hewed to conservative issues like abortion and sided with the timber companies (then the leading industry in Oregon) on environmental issues, but his votes on a number of other matters (he was strongly anti-war, for example) deflated opposition from all but the most extreme Democrats.
Like Hatfield, who is Baptist, Smith is devoutly religious and on a number of issues is very conservative. He gets low marks from environmental groups and has supported Bush tax cuts. When he first ran for the Senate (he lost to Wyden, then ran successfully for the seat Hatfield was leaving) he accepted the endorsement from Lon Mabon's gay-hating Oregon Citizens Alliance.
But in his second race, he tried to distance himself from the religious right, and in a TV commercial he promised not to let his personal opposition to abortion dictate his actions in Congress. In office he learned quickly that the most successful politicians are not necessarily those who adhere to a party line. Instead, success comes to those who work hard on issues that genuinely matter to them and equally hard on those issues that matter to their re-election. And those officeholders who flourish never reveal the difference.
Smith's courting of gay voters is case in point. In office, he has supported hate-crimes legislation and sponsored an employment non-discrimination act. Most important, perhaps, was his outspoken support of James Hormel, a Clinton friend who is openly gay and who had been nominated in 1998 to be ambassador to Luxembourg. Smith's support created real problems between him and other Republicans. At the same time, it won him extraordinary loyalty among the powerful group of Portland's gay voters in Portland, one of whom is Terry Bean.
Bean is a wealthy real-estate investor, and one of the most politically influential people in this city. He also happens to be a close friend and business partner of Hormel (the two own real estate together in Oregon). On Dec. 11 of this year, Bean will host a Democratic Senatorial Campaign Committee function, a fund-raiser that will be attended by several Democratic candidates for the Senate across the country. Nevertheless, Bean says that he will almost certainly endorse Smith for re-election in 2002. "I have a high degree of respect for Gordon," he says, "and I'm a dyed-in-the-wool Democrat."
Despite these successful efforts to woo the left in Oregon--or perhaps because of them--Smith is politically vulnerable. This is a man who lost his first campaign for Senate and won his second, against a political neophyte named Tom Bruggere, whose only asset was his high-tech millions. Opposing assisted suicide couldn't help but be politically risky.
The X factor in all of this, as everyone now knows, was John Kitzhaber, the hugely popular governor who was openly thinking of running against Smith, and who has been an aggressive supporter of assisted suicide. Kitzhaber even appeared in commercials in Maine during 2000, when that state voted on a measure to legalize assisted suicide (it lost by a slim margin). The prospect of a challenge from Kitzhaber, according to Smith supporters, gave the senator chills. Throwing assisted suicide into the mix, in the words of one Washington wag, scared Smith "shitless."
For this reason, many in D.C. remain convinced that Smith persuaded Ashcroft to delay the announcement until after Kitzhaber announced in September that he would not run. After all, Ashcroft had his legal ducks in line as far back as June. Some have suggested that, had Kitzhaber decided to run, Smith would have wanted Ashcroft to postpone his announcement till after the 2002 election, thus removing it as a campaign issue.
Smith's office concedes that the Oregon senator met with Ashcroft in June and discussed the matter of assisted suicide and Ashcroft's plan to issue his ruling. But he insists that he never asked Ashcroft to delay any announcement. Smith declined to be interviewed by WW, but his press secretary, Chris Matthews, says that all Smith did was suggest that Ashcroft not make an announcement until the attorney general held a number of public meetings across the state, a request the attorney general did not honor. But in no way, says Matthews, did Smith ask for a postponement. "No one said he wasn't concerned about the political consequences," adds Matthews. "It doesn't mean he [asked Ashcroft for a delay]."
A story by Jim Barnett in this past Sunday's Oregonian reinforces this theory. (The Oregonian opposed assisted suicide with an unusual degree of passion during the two campaigns and continues its opposition to this day.) The article advanced the idea that the Ashcroft decision was made in secret, without Smith's input.
It's a notion that has few supporters. "The idea that a Republican president, facing a 51-49 [Democratically controlled] Senate and concerned about an incumbent Republican senator in a Democratic-leaning state would leave the senator and his staff totally in the dark is ludicrous on its face," says one Washington insider.
Josh Kardon, a chief aide to Wyden, says, "It's clear from our sources that the administration waited until after Gov. Kitzhaber made his decision to come forward with this policy change--obviously Senate Republicans are very interested in holding onto Sen. Smith's seat."
Whatever the motive, the announcement last week by Ashcroft was perfectly timed. It was issued on election day, when media would be busy with other news. For the Bush administration, it satisfies an IOU to the Catholic Conference at a time when the downside is minimal. Says Rachel Gorlin, a D.C. Democratic political consultant who has done a good deal of work in Oregon, "I think Ashcroft and company figured that [this announcement] can cause them only minor heartburn right now, since the administration's overall approval rating is so high and the public is generally distracted by the terrorism situation."
And for Smith, the announcement comes at a moment when his position with liberals is as good as it ever was and his opponent is Bill Bradbury, not Kitzhaber.
As for the future, it will probably be years before the courts determine whether the prescription of life-ending drugs to terminally ill patients is a legitimate medical practice, or whether this is even a federal concern. Oregonians, who voted for assisted suicide not once but twice, have seen it work well, denying opponents the nightmares they predicted in 1994 and 1997. They can only wait and wonder whether justice will be done, or whether Oregon's experiment will become another unavenged victim of Washington politics.
--Nick Budnick assisted with the reporting on this article.
Attorney General Ashcroft's Nov. 6 decision amounts to a legal interpretation that the federal Controlled Substances Act prohibits doctors from dispensing the doses of barbiturates allowed by Oregon's assisted-suicide law.
Oregon Attorney General Hardy Myers responded to Ashcroft's announcement by filing suit Wednesday, Nov. 7, in federal court, arguing that Ashcroft exceeded his authority.
On Thursday, Nov. 8, U.S. District Judge Robert E. Jones issued a temporary restraining order that bars Ashcroft's ruling from taking effect until Nov. 20.
Since the assisted-suicide law took effect in 1997, at least 70 Oregonians have used the law to end their lives. By comparison, 14,000 abortions were performed in Oregon last year.
While campaigning in 1996, Smith said that he would not impose his religious views on his constituents when it came to laws he disagrees with, such as those governing abortion. "I believe America will not change its laws until it changes its mind," he was quoted as saying in The Oregonian. "My approach is incremental steps to change hearts and minds...compassion, not compulsion."